1. The Glasgow Bar Association ("the GBA") was formed in 1959. The objects of the Association, as contained in its constitution, include the promotion of access to legal services and access to justice and to consider and, if necessary, formulate proposals and initiate action for law reform and to consider and monitor proposals made by other bodies for law reform. The GBA also offers legal education programmes and sponsors and supports legal education and debate at Scotland's Universities

2. Today the GBA remains a strong, independent body. Its current member levels sit at around three hundred, by far the biggest Bar Association in the country. The GBA would encourage the Justice Committee to continue to seek its views on all legislative matters and is grateful to the Justice Committee for inviting our submission and indeed acceding to our request for oral evidence on these Regulations.

3. The Glasgow Bar Association (GBA) are opposed to these Regulations as drafted. We deal with the regulations in the order of the proposed cut to the core case fee payable for defending prosecutions in the Stipendiary Magistrates Court first, and the others following:

NOTE: Lesley Thomson Procurator Fiscal for Glasgow: "If the option of Glasgow Stipendiary Magistrate Court were not available to me, these are all cases that I would expect to be in Glasgow Sheriff Court". (Appendix H)

Current Position

In the Justice of the Peace Court, cases may be dealt with by a Stipendiary (Stip) Magistrate. Such cases carry the same fee rate as Sheriff Court cases. Stips have the same powers of sentence as Sheriffs.

Proposed Changes

The proposed reduction of the core fees, while not welcomed, are acknowledged as being a relevant budgetary induced cut.

Reduction of the Stip. case core fee to the proposed level, such as to create substantial differential in payment rates between Sheriff and Stip. cases is opposed.

Background To Proposals

The Cabinet Secretary for Justice, the Scottish Legal Aid Board (SLAB) and the Law Society of Scotland through their Negotiating Team (LSSNT) engaged in discussions regarding the proposed budget cuts from around September 2010. The LSSNT proposed to the Government the cut in the Stipendiary Magistrate core case fee in early November 2010. This proposal, and certain other proposals, without costings or details, were circulated to solicitors by the Law Society of Scotland on 23rd December 2010 at the start of the Christmas break. The LSS held a meeting on 6th January 2011 with the Deans of Faculty, which was the first "hearing" on the detail of proposals. The Deans had no opportunity to consult with the wider members who remained wholly uninformed. 6th January 2011 was the first opportunity for even the Deans of Faculty to consider options and proposals being suggested. Glasgow naturally voiced opposition to the suggestion that Glasgow, the only jurisdiction in Scotland which has Stips, should be singled out for disparate, inappropriate, differential, treatment. The proposal which was made by the LSSNT in the first instance, is wholly flawed and without merit. "Consultation" requires to be appropriate in the circumstances. No such appropriate Consultation has been undertaken.

The Government and SLAB negotiated with the LSSNT on the basis of non disclosure of the information to the general solicitor population. The failure to consult has led to flaws in the reasoning of those engaged in the purported Consultation.

LSSNT confirmed that part of the rationale for supporting a reduction of Stip. fee, although recognising they have the same sentencing powers as Sheriffs was that it, "does not deal with aggravated matters". In so stating, the LSSNT misinformed itself. Please refer to Appendix D attached hereto, showing that these cases are indeed aggravated by allegations of breaches of bail conditions.

The LSSNT pointed to the early resolution rate of guilty pleas at around 47% in the Justice of the Peace court, as opposed to the Sheriff Court rate of around 22% as being, "indicative of less complex cases". Again they were incorrect. Please refer to Appendix H and the comments in paragraph 3 made by Area Procurator Fiscal, Lesley Thomson.

The LSSNT, and, apparently, SLAB and the Government make no reference whatsoever to considerations that might affect the level of service capable of being provided at such a reduced fee rate.

Nature Of Cases In Stipendiary Courts

Refer to Appendix A. This is a full list of Charges in cases dealt with in a Stipendiary Court on 1st March 2011, as provided by the Justice of the Peace Court Clerk to GBA.

The types of cases vary but are all of a type which would, in jurisdictions other than Glasgow, be prosecuted at Sheriff Court level.

Appendix B. As above but for 3rd March 2011.

Appendix C. As above but for 8th March 2011.

Please refer to Appendix D. This is an example of a Complaint type. It demonstrates an assault with a weapon to injury and it is aggravated by an allegation of breach of a bail order. The second Charge is a breach of the peace which is again aggravated. It should be noted that the written notes on the Complaint indicate that the case was set to call in Court 6, a Stipendiary Court.

Appendix E should be referred to as another example of a typical Complaint. The Charge is a breach of the peace by brandishing a weapon. The second Charge is possession of an offensive weapon. Again, this case was set for Stipendiary court.

Appendix F is a further example of a Complaint dealing with an offensive weapon and an assault to injury. The case was again listed for Stipendiary court.

Appendix G1 is a further Complaint example. On the 3 Charges we see, in Charge 1, there is culpable and reckless conduct (giving endangerment to police safety),. Charge 2 deals with a Misuse of Drugs Act matter, being concerned in the supply of Class C drugs and Charge 3 is a Misuse of Drugs Act matter dealing with possession of a Class B drug.

It should be noted in the written notes that Court 6 (Stipendiary Court) is listed and in the top corner, the pen note of "Tfer" indicates this court case was initially set down to call in the Sheriff Court but was later transferred to the Stipendiary Court.

Appendix G2 is a list of previous convictions relating to the accused person in G1. It should be noted that the last conviction was a Sheriff and Jury matter for a Misuse of Drugs Act case where a Community Service Order was imposed, being a direct alternative to a custodial sentence. Accordingly, conviction on Charge 2, where these previous convictions are libelled, makes custody a likelihood and to be dealt with by a Stip Magistrate with the same sentencing powers as a Sheriff.

Appendix H. This is a letter to GBA President, Ken Waddell, dated 9th march 2011 from Lesley Thomson, Glasgow Area Procurator Fiscal.

Paragraph 3 confirms in clear and specific terms that the cases prosecuted in Glasgow Stip Courts are all Sheriff Court level cases.

It is important to note that the Area Procurator Fiscal commences Paragraph 3 of her letter by acknowledging that both Sheriff and Stipendiary Magistrates have equivalent powers of sentencing.

Accordingly, the Procurator Fiscal in Glasgow decides which cases are suitable for Sheriff Court level prosecution. Some sensitive/complex/aggravated cases are then marked for the Sheriff Court and the rest which remain Sheriff Court level prosecutions are set for Stipendiary Courts.

SLAB consider the Regulations 7 and 9 will give effect to policy objectives. In dealing with their fourth policy objective, to reduce the payment for cases before the Stipendiary Magistrates Court, they highlight that a key aspect of Summary Justice Reforms was a development of better appointed and trained lay Magistrates in the JP Courts who would be able to deal with more serious cases. They conclude, erroneously, that this has resulted in more serious cases now being routinely prosecuted at JP Court level all over the country. They make statistical analysis of case types which are a distortion of fact. SLAB conclude that cases in Stipendiary Magistrate Courts are now generally closer to cases in JP Courts elsewhere as opposed to Sheriff Court cases. They further suggest that in Glasgow, cases can be programmed into either Stipendiary or JP Court for convenience based on available court slots as opposed to the seriousness of the case. Appendix H at a stroke, exposes the lack of understanding on the part of SLAB (and LSSNT) and the Government. Further, in recent time the Scottish Court Service have closed numerous District Courts in jurisdictions throughout Scotland. Where those District Courts have closed the cases are now prosecuted in the Sheriff Court. Accordingly, the true position throughout Scotland is that Sheriff Court cases in jurisdictions outwith Glasgow now include cases that would be dealt with by lay Magistrates in the Justice of the Peace Court in Glasgow. Suggestion by SLAB that the seriousness of the case is not a criteria for selection of Stipendiary Magistrates Court as a forum is wholly inaccurate.

Moreover, the Scottish Legal Aid Board propose the Stipendiary Magistrate core fee cuts would attract savings of £398,909.33 to the Legal Aid fund in 2011-2012 and around £652,500 for a full year.

SLAB's produced figures indicate that of the Summary Applications granted (2009-2010 figures) in Sheriff Courts the figure was £47,644. In Justice of the Peace Courts the figure was £8,166. The grants of ABWOR at Summary level totalled £47,142: rounding down, 102,000 cases were dealt with. The projected savings that SLAB anticipate from Stipendiary cuts equate to a figure below £4 per year for the current year and around just under £6 in the next year. A single £5 cut to the core fee of all Summary Legal Aid grants of Legal Aid and ABWOR would achieve the same saving. The benefit would be an equitable distribution of the budgetary cut throughout all cases in Scotland. A cut of £5 per case is approximately a further 1% cut to the core fee. The current proposed reduction to Stipendiary fees is around 25%. Fairness and equity demand that the core fee throughout Scotland by cut to avoid the inappropriate proposed regulatory cuts to Stipendiary fees.

Where a duty solicitor enters a not guilty plea at the first calling of a case and a plea of guilty is tendered before commencement of Trial, the fee payable to the solicitor nominated on the Legal Aid Certificate will be restricted to one half.

Issues

No account appears to have been taken of cases where Complaints may carry multiple Charges and an eventual "Guilty" plea may relate to only one Charge or to a lesser Charge under deletion of some part of the Charge. Accordingly, the Regulations proposed take no account of work done or representations made by the solicitor acting OR of any change in the Crown position. Often the Crown will issue, at first calling, an, "acceptable plea letter" which specifies what plea is acceptable to the Crown e.g. on a Complaint bearing 5 Charges the Crown may indicate that they would accept guilty pleas to Charges 1, 2 and 4. If subsequently the Crown change their position, for example, after representations, Defence reports, etc., are available the plea acceptable to them may be less than first indicated. In such scenarios reduction to a half fee would be neither justified nor appropriate.

Moreover, the proposed Regulation 5, when inserting new section (5B)(b), deals with the tendering of a single plea of not guilty and takes no account of Complaints which bear multiple Charges. A difficulty will occur where an accused, for example, tenders a plea of guilty to Charge 1 on the Complaint and pleas of not guilty to Charges 2 and 3. Whilst the Crown may accept the guilty plea to Charge 1 and proceed to Trial on the other Charges, they may also reject the pleas as tendered as a whole in which case not guilty pleas will be entered (with the court Minute indicating that the plea has been offered). Subsequently, and before Trial, if the Crown position alters they may accept the plea initially tendered. Again, to propose a reduction of fee in such scenarios is wholly inappropriate.

Regulations 7 to 9

These deal with reductions and alterations to the current fee provisions for Summary cases in Sheriff and Justice of the Peace courts.

The proposal in Regulation 9 deals with the reduction of the core fee payable in such cases.

Possible Effects If The Regulations Are Passed

There will be a significant diminution in fee income to existing solicitor firms. This is over and above the 14% savings in summary case fees delivered by solicitors since SJR in 2008. This will affect service availability in Glasgow within the Justice of the Peace Court. Legal firms cannot maintain the level of service currently given to Sheriff Court level prosecutions under such diminished pay scales. Solicitors will inevitably require to cut costs. Loss of staff is inevitably a consequence. Both legally qualified assistants and unqualified support staff will be the casualties.

There is also a probability that a number of firms will choose to close offices with the solicitors becoming sole practitioners and working either from home or using the court as a base. This will reduce the service available to the public by street based offices.

A further realistic consequence and concern is that the current level of service provided in such cases would require to be reduced, bringing with it an increased possibility of error and a consequent likely, increase in miscarriages of justice.

Summary

There has been no consultation with the profession leading up to the promulgation of these Regulations.

The rationale and basis for the proposals to reduce the above mentioned fee levels is flawed and inept.

Fairness requires an equitable cut in core fee rates throughout Summary prosecutions in Scotland as opposed to unfair, excessive cuts to the Stipendiary fee which principally affects Glasgow.

1. The Glasgow Bar Association ("the GBA") was formed in 1959. The objects of the Association, as contained in its constitution, include the promotion of access to legal services and access to justice and to consider and, if necessary, formulate proposals and initiate action for law reform and to consider and monitor proposals made by other bodies for law reform. The GBA also offers legal education programmes and sponsors and supports legal education and debate at Scotland's Universities

2. Today the GBA remains a strong, independent body. Its current member levels sit at around three hundred, by far the biggest Bar Association in the country. The GBA would encourage the Justice Committee to continue to seek its views on all legislative matters and is grateful to the Justice Committee for inviting our submission.

3. The Glasgow Bar Association (GBA) are opposed to these Regulations as drafted

4. The Duty Scheme

Persons who are taken in to custody by the police have the right to have a solicitor notified.[1] Many choose to have their own solicitor notified whilst others will seek advice from the duty solicitor. Each jurisdiction maintains a duty scheme, in effect a list or rota of solicitors willing to act as a duty solicitor. In addition to performing a public duty-for which a limited payment is received -the opportunity of nomination as duty solicitor is an important source of new business for many legal firms.

Recently such schemes have been unilaterally amended by SLAB to provide that 35% of the scheme be made over to the PDSO. Additionally (and controversially) in Glasgow that 35% has been scheduled so as to ensure that the PDSO are "the duty solicitor" each weekend. This amendment to the duty scheme, most unfortunately, was implemented without ANY consultation with Glasgow solicitors. In seeking to appoint solicitors to the duty solicitors' roll, SLAB has a duty to follow the rules on public procurement which are intended to remove any distortion of competition as between public and private contractors. The application of competition law considerations would require that SLAB exercise their powers in making arrangements for duty solicitors in a manner that avoids the distortion of the competition that would naturally otherwise result from a free and open market. By amending the duty plan in the way that it has done, by allocating every weekend duty slot to its own solicitors, the PDSO, SLAB it will be argued is in breach of such requirements.

5. The Duty Solicitor

Current regulations set out the arrangements for the duty solicitor.[2] The duty solicitor attends at identification parades and with persons who appear from custody on or at the first court appearance and for certain other limited purposes. It is only in cases where the charge is murder, attempted murder or culpable homicide that she/he is required to attend upon an accused person in the police station.

Such assistance is provided without any means assessment-that is free of cost to the detained person. Payments to a solicitor who acts as duty solicitor are only made in relation to identification parades and court appearances.[3]

In certain circumstances advice and assistance may be available to cover a visit to an accused person in custody-who for example is to be interviewed by police. Such advice and assistance is not available to those who do not qualify on financial grounds. Where summary legal aid is subsequently granted any sums paid are subsumed within the core fee payment -so in effect the solicitor receives no additional payment for this work.[4]

6 Changes Brought About by the New Regulations

The new regulations with the exception of regulation 3 re-enact this general scheme. Regulation 3 additionally provides for a duty solicitor in relation to the pre-interview consultation with a solicitor, required by s15 A of the 1995 Act.[5] Importantly it also states that advice and assistance in such circumstances can only be provided by the duty solicitor. It would appear from the executive note and the later commencement date of this regulation, that it may be envisaged that a discrete duty scheme will operate in relation to these consultations.

7. Impact of Regulation 3

The effect of regulation 3 is to reduce the choice of legal representative available to a detained person. Currently in terms of the Legal Aid (Scotland) Act 1986[6] a detained person can choose the solicitor to provide them with such advice. The new regulation ensures that such a solicitor would receive no payment for any consultation.

It is also unclear as to how the scheme would operate in practice. A person who is taken in to custody might elect to have their own solicitor notified. They then if they are to be interviewed by the police, require to consult with a duty solicitor who is the only person entitled to payment. If a solicitor is required to be present during the police interview presumably a detained person can elect to choose his solicitor-who may not have conducted the pre-interview consultation.

In effectively excluding the solicitor most likely to have knowledge of the detained person, the regulation undercuts the rationale of the enactment of s15A. That solicitor will often be in a position to advise the police, that the detained person is vulnerable by dint of mental health issues or learning difficulties or of other circumstances which might impact upon the conduct of an interview.

Conclusion

The changes brought about by regulation 3 must be seen in the context of an alteration to the operation of the duty scheme which has already taken place without subordinate legislation. It furthers a process of expansion of the role of the PDSO, which has not been sanctioned by Parliament or even the subject of any meaningful public debate.